The Roberts Court's false "modesty," or, he doesn't really think he's Caesar, does he?

June 04, 2014 | By TIMOTHY SANDEFUR

This week’s decision in Bond v. United States is a victory for limited government, as my colleague Todd Gaziano writes. The Court was at least united on the idea that Congress can’t use the treaty power to expand its authority beyond what the Constitution provides.

But there’s also a disturbing aspect to the case that Justice Scalia emphasizes in his concurring opinion, and which sounds once again a theme in Roberts Court jurisprudence: the justices seem quite ready to rewrite statutes from the bench on the theory that doing so will “avoid constitutional questions.” This conception of “judicial restraint”—or “judicial modesty,” as Chief Justice Roberts put it during his confirmation hearings—raises a lot of problems; problems that would not be caused by simply holding a law unconstitutional. One might say that this habit is actually a weird form of “judicial activism,” the like of which I don’t think we’ve seen from previous Supreme Courts.

Now, readers of The Conscience of The Constitution know that I regard most of the debate over “judicial activism” as misguided. In fact, what’s usually called “activism” is often a good thing—today’s courts are usually far too deferential to the leigslature, willing to look the other way when Congress or the President exceed the limits on their powers. But in this context, the term “activist” might actually be warranted, because when the Court adopts these “saving constructions,” it self-consciously manipulates statutory language—admittedly changing it or refusing to follow what it admits is the real wording of the law, on the theory that Congress messed that wording up and the Court can fix it for them. That goes beyond ordinary disagreements about what the legal language means, and it goes beyond striking down popular legislation. This tactic leaves statutes on the books, but in altered form, with provisions cut or added in by judicial “construction.” The result is a law that Congress might have passed, but not what Congress did pass. And that’s more problematic than the ordinary thumbs-up or thumbs-down ruling on constitutionality, because it often creates far more confusion, leads to unanticipated complications, and leaves the public to wonder if the Court might be just as creative the next time around.

It seems as if the Roberts Court can’t bring itself to believe that such-and-such a law is really that badly written, and decides instead there must be some way it can fix the problem. It’s as if a person comes up to you at a cocktail party and says, “I am Julius Caesar.” You decide he can’t actually mean this, because that would be insane, so you will choose to believe that he actually meant to say “I admire Julius Caesar.” You can live with this “saving construction,” so therefore that’s what he really meant to say. The only problem, of course, is that those two sentences are completely different. As Twain once said, the difference between the right word and the almost right word is the difference between the lightning and the lightning-bug.

Consider the Jeffrey Skilling case, in which PLF filed this amicus brief. There, the Court was asked to decide whether a criminal law called the “honest services fraud” statute is unconstitutionally vague. The correct answer was yes, because nobody knows what “honest services fraud” is. But instead of addressing the constitutionality of the statute, and either upholding it or declaring it invalid, the Court chose to “interpret” it to apply only to cases of bribery and kickbacks. It gave plenty of good reasons why such a limit is a good idea…but the statute Congress passed was quite obviously not limited to such cases. The wording Congress chose included bribery and kickback schemes, but also prohibited fraudulent deprivation of “the intangible right of honest services,” which was the vague part of the law that caused problems. The Court admitted that the statute did not actually say what it said it said. But it declared that since bribery and kickbacks were the primary targets of fraud decisions preceding the adoption of the statute, the statute should be limited to those things. Well, perhaps it should be, but it wasn’t. That “interpretation” of the law was like saying that John’s new bakery will only bake cookies and pies, because that’s all he ever baked in the past. That’s not a logical interpretation. But the Court was plainly engaged in a creative effort to rescue the law from the doom that a straightforward reading would have required.

Perhaps that decision could be excused on the grounds that courts have always tried to take the narrowest possible view of criminal laws. But it took a more extreme step in NFIB v. Sebelius, when it announced, to virtually everyone’s surprise, that what Obamacare called a “penalty” for failing to purchase insurance wasn’t a penalty after all, but a tax. A tax on what?—on not buying insurance, which meant that it is a unique and unprecedented tax, one that is neither a direct nor an indirect nor an income tax, which taxes no property or activity, and which did not originate in the House of Representatives (because, according to the Obama Administration, it’s a tax but not a bill for raising revenue). Chief Justice Roberts explained that this “construction” was not the “most natural interpretation” of the law, but that he was adopting it in order to avoid holding the law unconstitutional.

The Court took a similar route with regard to the Medicaid provisions in the statute. Rightly holding that the federal government would be violating the Constitution if it withheld Medicaid funding in order to force states to legislate in a particular way, Roberts again adopted a “construction” of the statute, holding that “the Secretary cannot apply §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion,” even though the statute gave the Secretary power to “make no further payments to [a] State” if it refused to comply with the expansion. As the dissenting justices noted, that is not interpretation—that’s rewriting. And it had quite severe consequences: the Medicaid expansion which Congress passed was mandatory—the statute said “a State plan for medical assistance must” do such and such—but the Court transformed it into a non-mandatory provision. The Individual Mandate had been just that—a requirement. Had the requirement not been included, the Act would never have been passed, since the Mandate was needed to compensate for the guaranteed-issue burden imposed on insurance companies. The Court’s “interpretation” transformed “must” into “may,” which is about the same as transforming “no” into “yes.”

And now, in Bond, the Court “interprets” the law prohibiting “chemical weapons” in a “narrow” way to avoid addressing the question of whether Congress can expand its powers beyond ordinary constitutional limits by ratifying a treaty to that effect. The law prohibits “chemical weapons” which are defined as “toxic substances” used for anything other than a “peaceful purpose[].” And the Court rightly sees that this is absurdly broad: it would apply to ordinary poisons and routine domestic incidents which are obviously not what most people mean when they say chemical weapons. True enough, but these results are excessive only because the language of the law is unconstitutionally excessive—not because the language in the law is vague. Nevertheless, the Court decides that because the law would be unconstitutional if taken at its word, therefore the law must be ambiguous, and it proceeds to change what the law says.

And this time, the consequences of the “saving construction” are even more severe, because the Court never gets around to telling us what it thinks the statute actually does prohibit. In Skilling, we at least were told that the Court’s decision meant kickbacks and bribery were the only things outlawed; in NFIB, it said the mandate and Medicaid expansions were voluntary. But here, the Court never tells us what “chemical weapons” does mean. It says it doesn’t mean ordinary poisons, but does include “extremely dangerous substances with the potential to cause severe harm to many people.” Is that all that it includes? The Court doesn’t say, and it doesn’t say what kind of “harm” or what kind of “potential” or what degree of “extremity” is required. And while the Court says the law doesn’t cover what Ms. Bond did because “the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare,” it later seems to accept that “the definition of ‘chemical weapon’ in a particular case can reach beyond any normal notion of such a weapon.”

In his separate opinion, Justice Scalia rightly rejects the Court’s claim that the law is ambiguous. The fact that a law might violate the Constitution does not mean it is ambiguous; it only means that the statute might violate the Constitution! Seeing ambiguity where none exists, the Court then fails to clear up the ambiguity and tell us what a “chemical weapon” is. “No one,” Scalia says, “should have to ponder the totality of the circumstances in order to determine whether his conduct is a felony. Yet that is what the Court will now require…. Thanks to the Court’s revisions, the Act, which before was merely broad, is now broad and unintelligible. ‘[N]o standard of conduct is specified at all.'”

I think the justices who have taken to rewriting statutes in this way really think they’re being “modest,” because they’re not holding the challenged laws unconstitutional. But it’s hardly “modest” to tinker with a law in such a way as to leave in effect something substantially different from the law the legislators truly voted for. On the contrary, that’s far less “modest” than simply taking the law’s language seriously and holding it unconstitutional. The Skilling Court said that it was “not legislat[ing], but instead respect[ing] the legislature, by preserving a statute through a limiting interpretation.” But treating the language Congress voted for as Play-Doh that can be altered afterwards isn’t respectful. It’s patronizing. “Oh, you can’t really have meant that,” the Court tells Congress. “Here is what you really meant to say…”

Most of the time, when the Court is accused of activism, it’s because the justices invalidated a law that some people really liked. But the reason that accusation is normally unjustified is that in such cases, the Court provides a clear-cut yes or no ruling, which throws the ball back to the Congress’s court and gives it guidelines for passing an altered statute, amending the Constitution, or whathaveyou. But this fashion for “saving constructions,” by contrast, alters statutes and leaves them in force, which leaves Congress and the President holding something neither of them contemplated when they enacted the law. Maybe Congress can try to clean up the mess by amending the law, but that’s often harder than starting over from scratch, because the challenged statute will have generated a constituency or given rise to economic expectations in the meantime. Worst of all, it leaves us uncertain what the Court will do the next time it has to apply that same law.

I support an active and vigilant judiciary, willing to stand up to lawmakers when they exceed their bounds. But that’s not the same thing as altering the plain language of a law and then leaving it on the books, on the theory that this is “respectful” to Congress, or a more “modest” approach than simply telling Congress to go back and do things the right way. The Roberts Court seems devoted to upholding laws, even where doing so is far more costly to the democratic process, the rule of law, and individual rights, than it’s worth. Whatever that is, it doesn’t seem “modest” to me.